Análise jurídico-constitucional da criminalização da homofobia: da omissão legislativa ao ativismo judicial.

Abstract

The study analyzes, from the legal-constitutional perspective, the decision of the Supreme Court in the context of the Direct Action of Unconstitutionality for Omission (ADO) No. 26 / DF and the Order of Injunction (MI) No. 4733 / DF, resulting in criminalization. homophobia and transphobia. With the general objective of discussing, through the study of the present action, about the increasing judicial activism in Brazil, and having as specific objectives, to analyze the legislative omission of the National Congress in relation to the matter of the referred actions under discussion, going against the constitutional commandment. curbing discriminatory practices; analyze aspects of constitutional jurisdiction in accordance with the legal system; and analyze if the decision of the Supreme Court, using the method of interpretation in malam depart with the Law of Racism was the correct one, paying attention to the principles of Separation of Powers, Legality and Legal Reserve and if they were properly respected. To achieve the above objectives, the deductive method was used, adopting a methodology of analytical and comparative procedure, in addition to the techniques of bibliographic and documentary research. The results of this study point to the importance of concentrated constitutionality control actions in pressuring the legislature not to incur legislative delay, but warn of the danger to legal certainty and democracy in relation to exacerbated judicial activism.